As a legal observer of the final presidential
talking points exchange debate, the moment that stood out to me was when Mitt Romney pledged to “indict” Iranian President Mahmoud Ahmadinejad “under the Genocide Convention.” This is not the first time Romney has expressed this sentiment, having told reporters last month that he would pursue legal action against Ahmadinejad.
Uh-oh! Mahmoud, watch out for that process server.
This is not exactly a “get tough” military option as much as an “empty symbolic gesture,” but that’s understandable, because, as the media can’t stop telling us, “women don’t like scary conflict.”
But what exactly is Romney talking about? How does one indict the President of Iran? Let’s journey down the rabbit hole of international law…
The Genocide Convention that Romney cites is the Convention on the Prevention and Punishment of the Crime of Genocide. This Convention was adopted in 1948 and defined “genocide” for the sake of international law and identified a number of punishable crimes, specifically:
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
In this instance, Romney is accusing Ahmadinejad of violating subsection (c), publicly inciting genocide by telling Iranian students that Israel should be wiped off the map. There’s some question about whether or not he really said that, but he at least expressed enmity for Israel. And when the leader of the largest military in the region calls someone out as an enemy it’s certainly not friendly. Whether opposing a Jewish state is the same as inciting genocide against the Jewish people per the Genocide Convention would have to be determined by the court. After all, both Iran and the United States have ratified the Genocide Convention and are bound to adhere to its tenets. Open and shut.
What’s that? You don’t know what court would hear this prosecution? Excellent question. International law has the unfortunate quality of being largely unenforceable. Historically, the international community established ad hoc tribunals to deal with these crimes after the fact. But setting up a new tribunal after every humanitarian crisis was never an ideal solution. This is why the world banded together to create the International Criminal Court to provide a permanent tribunal to hear charges of genocide and other war crimes.
But of course neither Iran nor the United States are parties to the I.C.C. In the case of Iran, there’s skepticism about the jurisdiction of the court over international aggression and, you know, the whole whipping and stoning people thing. Meanwhile the United States refuses to ratify the treaty for fear that it might be used to prosecute American leaders for war crimes stemming from actions like hurling weaponized RC airplanes at people. So basically the I.C.C. is off the table as a mechanism for prosecuting Ahmadinejad.
Is Romney suggesting that the U.S. would ratify the I.C.C. under his administration? Probably not. His principle foreign policy advisor has called the I.C.C. “one of the world’s most illegitimate multilateral institutions.” So joining the I.C.C. would require an unlikely, massive shift in policy.
The second option available to Mitt Romney would be the domestic legal system. As part of the ratification of the Genocide Convention, the U.S. integrated the Convention into federal law. Chapter 50A – Section 1091 of the U.S. Code criminalizes genocide using similar terms as the Genocide Convention. This law would really put Ahmadinejad in his place since it calls for a punishment of not more than a $500,000 fine or imprisonment of not more than five years, or both. There’s a five-year mandatory minimum for just having 28 grams of crack. In case you were wondering, yes the U.S. believes possessing crack is a shade worse than genocide.
Unfortunately for Romney’s hypothetical future Attorney General (read: Harriet Miers), the statute also limits prosecution to the circumstance where:
(1) the offense is committed within the United States; or
(2) the alleged offender is a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101).
Tehran is not, in fact, within the United States, so unless there’s a birtherism controversy in Iran over Ahmadinejad really being from Jersey, there’s not much chance of a federal district court hearing this case any time soon.
And thus, anyone voting for Romney to see the Ahmadinejad trial will be disappointed.
Joe Patrice is the author of Recess Appointment, a blog about political rhetoric, and he’ll be dropping in occasionally to write about the intersection of law and politics. To answer the question that you’re probably about to ask, he got his J.D. at NYU and spent ten years working at a Biglaw firm and a white-collar defense boutique. His favorite word is sesquipedalian.